SC fixes 3 issues for adjudication on pleas challenging Centre's 10 pc EWS quota

The Supreme Court on Thursday (September 8) fixed three broad issues for adjudication, which are stemming from the pleas questioning the Centre’s decision to grant 10 per cent reservation to Economically Weaker Sections (EWS) in admissions and jobs.

It will also decide whether the Constitution (103rd Amendment) Act breached the doctrine of the basic structure of the Constitution by allowing the state to make such special provisions.

The three issues suggested by Attorney General K K Venugopal for the decision “broadly” covered all the aspects relating to the petitions on the constitutional validity of the decision to grant the reservation, said the five-judge Constitution bench headed by Chief Justice Uday Umesh Lalit.

The first issue that was framed asked whether the 103rd Constitution Amendment Act can be said to breach the basic structure of the Constitution by permitting the state to make special provisions, including reservation, based on economic criteria.

The second legal question was whether the constitutional amendment breaches the basic structure by permitting the state to make special provisions concerning admissions to private unaided institutions.

While the third issue to be adjudicated  by the bench read thus: “Whether the 103rd Constitution amendment can be said to breach the basic structure of the Constitution in excluding the SEBCs/OBCs, SCs/STs from the scope of EWS reservation.”

Also read: Supreme Court to examine constitutional validity of 10% quota for EWS

The doctrine of basic structure was propounded by the top court in 1973 while deciding the Keshavananda Bharati case. It was held that Parliament cannot amend every bit of the Constitution, and aspects such as rule of law, separation of powers, and judicial freedom formed part of the “basic structure” of the Constitution and hence, cannot be amended.

The bench, also comprising justices Dinesh Maheshwari, S Ravindra Bhat, Bela M Trivedi, and J B Pardiwala, took note of the issues framed by several counsels and then decided to take up the three questions framed by Venugopal as the essential core ones to be decided.

“First three issues suggested by the attorney general are the issues which arise in the matter,” the bench said. The hearing will commence on September 13 as per schedule, it added. Further, the bench said that the remaining issues suggested by other lawyers were of the nature of submissions connected to the propositions emerging from questions suggested by the attorney general.

The CJI asked the intervenors, including states like Madhya Pradesh, Assam, and Maharashtra, to file their written submissions in the case and assured them that they will also be allowed to argue provided no arguments are repeated.

On September 6, the bench had made it clear that it would commence hearing from September 13 the batch of 40 petitions, after deciding the issues for its adjudication and passing the directions to ensure a smooth hearing.

Also read: SC orders status quo, says Delhi HC-appointed CoA will not take over affairs of IOA

The bench was told the lawyers for the parties will need 18 hours in all to argue. Most of the petitions, including the lead one filed by Janhit Abhiyan in 2019, challenge the validity of the Constitution Amendment (103rd) Act 2019, which provides a quota for EWS-category candidates.

The Central government, which is led by the attorney general and Solicitor General Tushar Mehta, had filed the petitions seeking transfer of pending cases, challenging the EWS quota law, from various high courts to the apex court for an authoritative pronouncement on the issue.

The Centre, through the 103rd Constitutional Amendment Act, 2019, introduced the provision for EWS reservation in admissions and public services.

Earlier, the Centre had told the apex court that its law, granting a 10-per cent quota for EWS, was brought in to promote “social equality” by providing “equal opportunities in higher education and employment to those who have been excluded by virtue of their economic status”.

It had said the new law will not be covered by the Indra Sawhney versus Union of India (popularly called Mandal Commission verdict) verdict of 1992 as provision for the reservation was made after amending the Constitution.

“That the Constitution Amendment (103rd) Act 2019 was necessitated to benefit the economically weaker sections of the society who were not covered within the existing schemes of reservation, which as per statistics, constituted a considerably large segment of the Indian population,” the Centre had said in 2019.

In order to do justice across all weaker sections of the society, it had said, “it was therefore considered imperative that the Constitution be appropriately amended to enable the State to extend various benefits, including reservations in educational institutions and public employment to the EWSs of the society who are not covered by any of the existing schemes of reservation…”.

The Lok Sabha and the Rajya Sabha cleared the bill on January 8 and 9 in 2019 respectively and it was then signed by then President Ram Nath Kovind. The EWS quota is over and above the existing 50 per cent reservation to SCs, STs, and Other Backward Classes (OBCs).